Publish and be damned? Commercial bloggers.

GuidoFawkesGunpowderPlot

Guido Fawkes (Gunpowder Plot)

In my first post on the draft Royal Charter for Self-Regulation of the Press (the “Royal Charter”) and amendments tabled for consideration in the Crime and Courts Bill (the “Amendments”) published on Monday, 18 March 2013, I stated that as a private blogger, they would not worry or concern me.

What about commercial blogs and bloggers?

The Royal Charter definition of “relevant publisher” makes no distinction between personal or commercial blogs. It catches any blog which publishes news-related material. This includes publishers based outside of the UK, if it is determined that the news-related material on the blog is directed at the UK. For example, Global and General Nominees Ltd, the St Kitts and Nevis publisher of the Guido Fawkes blog, must be considered to be a relevant publisher for the purposes of the Royal Charter.

However, if an offshore relevant publisher chose not to sign up to a recognised/approved regulator, what would be the effect? In other words, what is the risk to Guido Fawkes of joining the Spectator and Private Eye in ignoring the Royal Charter?

The heavy-handed Amendments attempt to penalise relevant publishers for not submitting to the jurisdiction of a recognised/approved regulator by permitting the courts to award exemplary damages against them and make adverse costs orders, in respect of certain claims (defined as “Relevant Claims”: civil claims for libel, slander, breach of confidence, misuse of private information, malicious falsehood and harassment).

Note that the definition of “relevant publisher” in the Amendments is different.

NC29 of the Amendments’ definition for “relevant publisher” catches a person who, in the course of business (whether or not carried on with a view to profit), publishes news-related material. The first obvious question is what, in the context of the Crime and Courts Bill, does “in the course of business” mean? It’s anyone’s guess, but going by the old favourite of the plain, ordinary meaning of the words, I’d suggest that any website or blog that is published by a commercial entity or charity will be caught. This will catch many political current affairs blogs, such as LabourList, PoliticsHome and ConservativeHome. The grey area will be personal blogs that also carry advertising – will these be sufficiently commercial to be “in the course of business”?

Taking the two definitions into account, I’d say the Guido Fawkes blog was a relevant publisher for both the Royal Charter and the Amendments and so was caught by them. So what?

For the threat of exemplary damages and adverse costs orders under the Amendments to have any effect on overseas commercial blogs, in order to persuade them to volunteer to be subject to a recognised press regulator under the Royal Charter, the blogs would have to be convinced that claimants could successfully bring a Relevant Claim against them.  This would require Relevant Claim claimants to get leave to serve a claim outside of the relevant jurisdiction (see Civil Procedure Rules Part 6 and relevant Practice Directions 6B), to get a default judgement, assuming the blog publishers ignore the claimants’ served claims (Part 12 and Practice Direction 12) and obtain orders to enforce any judgments (eg stop orders? Part 73 and Practice Direction 73). All tricky steps – good luck with that for a claimant who is a normal person of usual means.

I suspect that many overseas commercial blogs, Guido Fawkes amongst them, will not be sufficiently worried by the Amendments regime to rush into the arms of a Royal Charter recognised press regulator.

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